Gardner v. TDCJ (Tex.App.- Houston [14th Dist.] Jan. 15, 2009, pet. denied July 2009)
(IFP prisoner suit, access to the courts, bench warrant, dismissal without evidentiary
AFFIRMED: Opinion by
Justice Seymore  
Before Justices Brock Yates, Seymore and Boyce
14-07-00992-CV   Kirby Gardner v. Texas Department of Criminal Justice, Correctional
Institiutions Division, Nathaniel Quarterman, Jackie Edwards, James W. Mossbarger, and Sharon
Appeal from 412th District Court of Brazoria County
Trial Court Judge:  W. Edwin Denman

M E M O R A N D U M  O P I N I O N

Appellant, Kirby Gardner, an inmate in a state correctional facility, filed this pro se, in forma
pauperis suit naming the following as defendants: Texas Department of Criminal Justice,
Correctional Institutions Division (“TDCJ"); Nathaniel Quarterman and Jackie Edwards -
purportedly directors with TDCJ; James W. Mossbarger-  allegedly the warden of appellant's
facility; and Sharon Fox, a Justice of the Peace in Brazoria County, Texas.  Three days later, the
trial court sua sponte signed an order dismissing the suit with prejudice on the ground it had no
arguable basis in law.  In his sole issue, appellant contends the trial court erred by dismissing his
suit.  Because all dispositive issues are clearly settled in law, we issue this memorandum opinion
and affirm.  See Tex. R. App. P. 47.4.

I.  Applicable Law and Standard of Review

Chapter 14 of the Texas Civil Practice and Remedies Code governs inmate in forma pauperis
suits.  See Tex. Civ. Prac. & Rem. Code Ann. §§ 14.001-.014 (Vernon 2002).  A court may
dismiss such a claim before or after service of process if it is frivolous or malicious.  Id. §14.003(a)
(2).  In determining whether a claim is frivolous or malicious, the court may consider, among other
grounds, whether the claim has no arguable basis in law.  Id. §14.003(b)(2).

Apparently, the trial court dismissed the present suit before service of process and without a
hearing.  In the order, the trial court did not explicitly state that appellant's claims were  
“frivolous."  Rather, the trial court dismissed the suit because  appellant “failed to state a cause
of action as a matter of law."  We have interpreted identical language as a dismissal based on a
finding that claims are frivolous because they have no arguable basis in law.  See Minix v.
Gonzales, 162 S.W.3d 635, 637 (Tex. App.-Houston [14th Dist.] 2005, no pet.).  Further,
although a trial court generally has broad discretion to determine whether an inmate's suit should
be dismissed, when a court dismisses a claim as frivolous without conducting a fact hearing, we
may affirm only if the claim has no arguable basis in law.  Retzlaff v. Tex. Dept. of Criminal
Justice, 94 S.W.3d 650, 653 (Tex. App.-Houston [14th Dist.] 2002, pet. denied); Denson v. T.D.C.
J.-I.D., 63 S.W.3d 454, 459 (Tex. App.-Tyler 1999, pet. denied).

We apply a de novo standard when reviewing whether a claim has an arguable basis in law.  
Minix, 162 S.W.3d at 637; Retzlaff, 94 S.W.3d at 653.  We examine the claims asserted and the
relief requested Ato determine whether, as a matter of law, the petition stated a cause of action
that would authorize relief."  Spurlock v. Johnson, 94 S.W.3d 655, 658 (Tex. App.-San Antonio
2002, no pet.); see Denson, 63 S.W.3d at 459.  To have no arguable basis in law, a claim must
be based on Aan indisputably meritless legal theory" or  wholly incredible or irrational factual
allegations.  Minix, 162 S.W.3d at 637.  An inmate's claim may not be dismissed merely because
the court considers the allegations Aunlikely."  Id.

II.  Analysis

Appellant's present suit is based on appellees' alleged actions with respect to a  different case.  
In his petition in the present suit, appellant asserted the following factual allegations.  He
previously filed a case in the justice court where appellee, Sharon Fox, presides.  In that case,
appellant alleged appellees, TDCJ, Quarterman, Edwards, and Mossbarger, confiscated
appellant's personal property without just compensation and refused to provide effective
administrative remedies for its return.  Judge Fox sent a notice advising the parties to appear in
court at a certain time and warning that appellant's failure to appear would result in dismissal of
his case.  Appellant sought, but did not obtain, a bench warrant from Judge Fox ordering the
TDCJ officials to transport him to the courthouse for the hearing.  The TDCJ officials did not
transport appellant to the courthouse or facilitate his participation by telephone.  Because he
failed to appear, Judge Fox dismissed the case with prejudice for want of prosecution.

In the present suit, appellant pleaded that all appellees violated (1) article 1, sections 13, 17, 19,
and 27 of the Texas Constitution and (2) article IV, section 2 and the first, seventh, ninth, and
fourteenth amendments of the United States Constitution.[1]  Appellant also asserted a cause of
action against Judge Fox and the TDCJ officials in their individual capacities under 42 U.S.C.
section 1983, which provides a remedy for violations of federal rights committed by persons
acting under color of state law.  See 42 U.S.C. § 1983; Denson, 63 S.W.3d at 461.[2]  In
essence, appellant's complaints were all based on appellees' alleged denial of appellant's
constitutional right to access the courts. Appellant sought monetary damages and equitable
relief.  We will address the claims against Judge Fox and the TDCJ appellees separately because
our analysis as to these parties is different.[3]

A.        Judge Fox

In his petition in the present suit, appellant complained that Judge Fox denied appellant's
constitutional right to access the courts by (1) dismissing the justice court case despite her
knowledge that his inmate status rendered him unable to appear for the hearing, (2) failing to
issue a writ to facilitate his appearance, and (3) failing to provide alternative means for appellant
to prosecute the suit, such as participation via filings or telecommunication.  On appeal, appellant
concedes his claims for monetary damages against Judge Fox are barred by the doctrine of
judicial immunity and challenges only the dismissal of his request for equitable relief.

Although an inmate does not have an automatic right to appear personally in every court
proceeding, he does not lose the right to access the courts simply because he is incarcerated.  
In re Z.L.T., 124 S.W.3d 163, 165 (Tex. 2003); In re R.C.R., 230 S.W.3d 423, 426 (Tex. App.-
Fort Worth 2007, no pet.).  An inmate requesting a bench warrant must justify the need for his
physical presence.  In re Z.L.T., 124 S.W.3d at 166.  The right of a prisoner to access the courts
entails not so much his personal presence as the opportunity to present evidence or contradict
evidence of the opposing party.  R.C.R., 230 S.W.3d at 426.  Thus, if a court determines that a
pro se inmate in a civil action is not entitled to leave prison to appear personally in court, the
inmate should be allowed to proceed by affidavit, deposition, telephone, or other means. Id.;
Boulden v. Boulden, 133 S.W.3d 884, 886-87 (Tex. App.-Dallas 2004, no pet.).

Even if Judge Fox denied appellant's constitutional right to access the courts, his claim for
equitable relief in the present suit had no arguable basis in law because of the particular relief
requested.  Notably, the present suit was not an appeal from Judge Fox's dismissal of appellant's
justice court case or a petition for writ of mandamus compelling Judge Fox to take certain actions
in that case.  C.f., e.g., R.C.R., 230 S.W.3d 423 (reversing trial court's dismissal of inmate's civil
complaint for want of prosecution based on his non-appearance as required at hearing where
trial court failed to issue requested bench warrant or permit appearance by alternative means);
Boulden, 133 S.W.3d 884 (same).  Rather, this is a separate suit, in which appellant merely
sought “equitable relief as the court deem [sic] appropriate to prevent same occurrence and/or
retaliation against [appellant's] person."

Apparently, appellant sought an injunction from the trial court requiring Judge Fox to ensure
appellant's appearance personally or by alternative means at future proceedings in cases he
may file in her justice court.  However, appellant cites no authority allowing a court to issue an
injunction compelling the judge of another court to take a particular action in some unknown
potential suit.  To the contrary, to obtain an injunction, a plaintiff must prove, among other
elements, a wrongful act and existence of imminent harm.  Jim Rutherford Invs., Inc. v. Terramar
Beach Cmty. Ass'n, 25 S.W.3d 845, 849 (Tex. App.-Houston [14th Dist.] 2000, pet. denied).  “'An
injunction will not lie to prevent an alleged threatened act, the commission of which is speculative
and the injury from which is purely conjectural.'"  Democracy Coal. v. City of Austin, 141 S.W.3d
282, 296 (Tex. App.-Austin 2004, no pet.) (quoting Markel v. World Flight, Inc., 938 S.W.2d 74,
80 (Tex. App.-San Antonio 1996, no writ)).  Whether there is a threat of imminent harm is a legal
determination resting with the court.  Id.  Appellant's request for relief presupposed he will file
another suit mandating his appearance and Judge Fox will fail to issue a bench warrant or other
pertinent order.  Consequently, appellant sought to prevent an alleged future act that is entirely

To the extent appellant requested equitable relief to prevent Aretaliation," he pleaded no
supporting factual allegations.  He did not allege Judge Fox committed or threatened any
retaliation.  His only mention of “retaliation" was in his request for relief.

Accordingly, the trial court properly dismissed appellant's claims against Judge Fox on the
ground they lacked an arguable basis in law.

B.        The TDCJ Appellees

In his petition in the present suit, appellant complained that the TDCJ appellees violated
appellant's constitutional right to access the courts by failing to authorize his transportation to the
justice court hearing or facilitate his participation by telephone.

Preliminarily, we note appellant did not allege he requested that the TDCJ officials transport him
to the hearing or facilitate his participation by telephone.  Appellant merely suggested the
officials should have ensured his participation because they purportedly received notice of the
hearing as parties to the justice court case.

Nevertheless, the authorities we have cited make clear that it is the trial judge who determines
whether an inmate may appear for a hearing either personally or by alternative means and
issues a bench warrant or other appropriate order.  See R.C.R., 230 S.W.3d at 426-27; Boulden,
133 S.W.3d at 886-87.  As we have explained, appellant expressly alleged Judge Fox did not
issue a bench warrant or other order.  Any notice of hearing provided to the officials, as parties
to the justice court case, did not equate to an order from Judge Fox requiring the officials to
facilitate appellant's participation.

Appellant cites no authority establishing the officials were required, or even allowed, to remove
him from confinement and transport him to the courthouse, or facilitate his participation by
telephone, absent a court order compelling such action.  Citing Bounds v. Smith, 430 U.S. 817
(1977), appellant advances the general proposition that prison officials have a constitutional
obligation to provide adequate, effective, and meaningful assistance to aid a prisoner in pursuing
a legal claim.  However, the full holding of Bounds was, “the fundamental constitutional right of
access to the courts requires prison authorities to assist inmates in the preparation and filing of
meaningful legal papers by providing prisoners with adequate law libraries or adequate
assistance from persons trained in the law." Id. at 828.[4]  Bounds is not controlling because the
holding did not concern an inmate's complaint that prison officials failed to facilitate his
appearance at a court hearing in a civil suit.  See id.

Therefore, we conclude appellant's claims that the TDCJ appellees violated his constitutional
right to access the courts lacked an arguable basis in law. Consequently, the trial court did not
err by dismissing appellant's claims against the TDCJ appellees.

We overrule appellant's sole issue and affirm the trial court's order of dismissal.

/s/        Charles W. Seymore


Panel consists of Justices Yates, Seymore, and Boyce.

[1]  In the introductory paragraph of his petition, appellant also contended he was denied rights
under Texas Government Code section 501.007 and the Fourth Amendment to the United States
Constitution.  However, in the body of his petition, appellant did not cite these provisions when
specifically outlining his causes of action.  Further, he does not mention these provisions on
appeal.  Thus, he has waived a challenge to dismissal of any claims under these provisions.  See
Tex. R. App. P. 38.1(h) (providing, appellant's brief must contain clear and concise argument for
contentions made, with appropriate citations to authorities and record);  Sunnyside Feedyard, L.
C. v. Metropolitan Life Ins. Co., 106 S.W.3d 169, 173 (Tex. App.-Amarillo 2003, no pet.)
(recognizing appellant's failure to brief issue results in waiver on appeal).

[2]  On appeal, appellant also suggests the TDCJ appellees are liable under the Texas Tort
Claims Act, but he did not plead a cause of action under this act.

[3] We note that not all constitutional provisions cited by appellant concern a right to access the
courts. For instance, he cites the portion of Article IV, Section 2 of the federal constitution
providing, “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens
in the several States."  U.S. Const. art. IV, ' 2.  Nevertheless, to the extent appellant contended
appellees violated provisions guaranteeing the right to access the courts, we conclude his claims
lacked an arguable basis in law.

[4]  The Supreme Court has since narrowed and further defined the scope of Bounds with
respect to an inmate's rights and obligations of prison officials.  See Lewis v. Casey, 518 U.S.
343 (1996).  We need not discuss the scope of Bounds because it is inapplicable to the present